McGore v. Trinity Food Group et al

Filing 5

OPINION AND ORDER DENYING APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND DISMISSING CASE WITHOUT PREJUDICE. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARRYL MCGORE, #142739,
Plaintiff,
v.

CASE NO. 2:17-CV-13135
HONORABLE PAUL D. BORMAN

TRINITY FOOD GROUP, et al.,
Defendants.
/
OPINION AND ORDER DENYING APPLICATION TO PROCEED WITHOUT
PREPAYMENT OF FEES OR COSTS AND DISMISSING COMPLAINT
I.

Introduction
Michigan prisoner Darryl McGore (“Plaintiff”), currently confined at the

Bellamy Creek Correctional Facility in Ionia, Michigan, has filed a pro se civil rights
complaint (with a supplement/amendment) pursuant to 42 U.S.C. § 1983, as well as
an application to proceed in forma pauperis. In his complaint, which is somewhat
difficult to read, Plaintiff raises claims concerning the food service at various prisons,
including the Baraga Correctional Facility, the Alger Correctional Facility, the
Marquette Correctional Facility, and the Bellamy Creek Correctional Facility, and
raises claims concerning his state criminal proceedings and seeking a federal grand
jury. He names the Trinity Food Group, several prison wardens, and Detroit city and

police officials as the defendants in this action. He seeks injunctive-type relief and
monetary damages. Having reviewed the matter, the Court denies the application to
proceed without prepayment of fees or costs and dismisses the complaint (and
supplement/amendment) without prejudice pursuant to 28 U.S.C. § 1915(g).
II.

Discussion
Under the Prison Litigation Reform Act of 1996 (“PLRA”), a prisoner may be

precluded from proceeding without prepayment of the filing fee in a civil action under
certain circumstances. The statute provides, in relevant part:
In no event shall a prisoner bring a civil action or appeal a judgment in
a civil action or proceeding under this section, if the prisoner has, on 3
or more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g). In short, the “three strikes” provision requires the Court to
dismiss a civil case when a prisoner seeks to proceed without prepayment of the filing
fee if, on three or more previous occasions, a federal court has dismissed the
prisoner’s action because it was frivolous, malicious, or failed to state a claim upon
which relief may be granted. Id.; see also Dupree v. Palmer, 284 F.3d 1234, 1236
(11th Cir. 2002) (holding that “the proper procedure is for the district court to dismiss
the complaint without prejudice when it denies the prisoner leave to proceed in forma
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pauperis pursuant to the provisions of § 1915(g)”).
Plaintiff is a prolific litigator in federal court. The Court’s records reveal that
he has filed at least three prior civil actions which have been dismissed as frivolous
and/or for failure to state a claim upon which relief may be granted. See, e.g., McGore
v. Michigan Supreme Ct. Judges, No. 1:94-cv-00517 (W.D. Mich. Jan. 25, 1995);
McGore v. Nardi, No. 2:93-cv-00137 (W.D. Mich. Aug. 2, 1993); McGore v. Stine,
No. 2:93-cv-00112 (W.D. Mich. July 26, 1993); McGore v. Stine, No. 2:93-cv-00077
(W.D. Mich. April 30, 1993). Although the dismissals were entered before the
PLRA’s enactment, they nevertheless count as strikes. Wilson v. Yaklich, 148 F.3d
596, 604 (6th Cir.1998). In addition, Plaintiff has previously been denied leave to
proceed in forma pauperis for having three strikes. See, e.g., McGore v. United States
Supreme Ct., et al., No. 2:14-CV-14716 (E.D. Mich. Jan. 8, 2015); McGore v. Detroit
Police Officers, No. 2:11-CV-12994 (E.D. Mich. July 19, 2011); McGore v. Lutz, et
al., No. 2:09-CV-13031 (E.D. Mich. Aug. 11, 2009); McGore v. Rich, et al., No. 1:09cv-00395 (W.D. Mich. July 6, 2009); McGore v. McKee, et al., No. 1:04-cv-00421
(W.D. Mich. Aug. 11, 2004); McGore v. Gundy, et al., No. 1:00-cv-00155 (W.D.
Mich. March 15, 2000).
Consequently, Plaintiff is a “three-striker” who cannot proceed without
prepayment of the filing fee unless he can demonstrate that he is “under imminent
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danger of serious physical injury.” 28 U.S.C. § 1915(g). To fall within the statutory
exception to the three strikes rule, a prisoner must allege that the threat or prison
condition is ‘real and proximate’ and the danger of serious physical injury must exist
at the time the complaint is filed. See Rittner v. Kinder, 290 F. App’x 796, 797-98
(6th Cir. 2008) (citing Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003);
Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001) (en banc)). An assertion
of past danger is insufficient to invoke the exception. Id. Plaintiff does not allege any
facts which indicate that he is under imminent danger of serious physical injury so as
to fall within the exception to the three strikes rule. Consequently, he is not allowed
to proceed without prepayment of the filing fee for this action.
III.

Conclusion
Based upon the foregoing discussion, the Court concludes that Plaintiff has

filed at least three previous lawsuits which have been dismissed as frivolous and/or
for failure to state a claim upon which relief may be granted and that he has failed to
establish that he is under imminent danger of serious physical injury so as to fall
within the exception to the three strikes provision of 28 U.S.C. § 1915(g).
Accordingly, the Court DENIES Plaintiff’s application to proceed without prepayment
of fees or costs and DISMISSES his complaint (with supplement/amendment)
pursuant to 28 U.S.C. § 1915(g). This dismissal is without prejudice to the filing of
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a new complaint with payment of the full filing fee.
Lastly, the Court concludes that it has properly applied the “three strikes”
provision of 28 U.S.C. § 1915(g) such that an appeal from this order would be
frivolous and cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.

s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: September 29, 2017

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on September 29, 2017.
s/Deborah Tofil
Case Manager

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